Documentary Evidence Flashcards
Definition of a Document
➢ There is no single common-law definition of what constitutes a document.
➢ The definition is very wide as a result.
R v Daye def of document
▪ A document is any written thing capable of being evidence.
▪ It does not matter what it is written on.
Section 33 of the CPEA def of document
▪ Defines a document as includes any book, map, plan,drawing or photograph.
Section 221 of the CPA def of document
Defines a document as including any device by means of which information is recorded or stored.
ECTA accommodation of technology
▪ Accomodates developments in technology by creating a new type of evidence, namely a data message.
▪ A “data message” is defined as:
* Data generated, sent, received or stored by
electronic means and includes:
(a) Voice, where the voice is used in an automated transaction; and
(b) a stored record.
Two basic rules for the admissibility requirements
➢ The original document must be produced.
➢ The document must be authenticated.
Admissibility requirements ito the Original document
➢ Originality appears to correspond with the original source of recording.
➢ The rationale is associated with the best evidence rule.
➢ A consequence of the original document requirement is that secondary evidence may not be used to prove the contents of a document.
Ndlovu v Minister of Correctional Services and Another
▪ Deals with the admissibility of documentary evidence. It provides that:
* (1) The statements contained in the document must be relevant and otherwise admissible.
* (2) The authenticity of the document must be proved; and
* (3) The original document must normally be
produced
▪ Data messages must comply with all three requirements save for (3) if S15(1)(b) of ECTA applies.
What does originality correspond with ito Ndlovu case?
Originality appears to correspond with the original source of recording.
What is the rationale in the Ndlovu case associated with?
The rationale is associated with the best evidence rule
Case law on the rationale being associated with the best evidence rule
▪ Welz and Another v Hall and Others
* Points out that this rule is ancient and that it doesn’t make sense for it to still be part of the law.
* Regardless, it still is the law.
What is the consequence of the original document requirement?
Secondary evidence may not be used to prove the contents of a document
Exception to the admissibility requirements
If secondary evidence is the only means of
proving the document (that it exists), it may be admitted.
List the requirements which a document must meet in order to use a secondary document to prove the existence of the original document (meeting only one of these documents will suffice)
(1) Document is lost or destroyed
(2) The document is in the possession of the
opposing party
(3) The document is in possession of a 3rd party
(4) It is impossible or inconvenient to produce the original
(5) It is permitted by statute
Putter v Provincial Insurance Co Ltd and Another
A thumb print will suffice as a signature
Singh v Govender Brothers Construction (Lost)
- Facts
Dispute centered around the proper use of
secondary evidence, on account of a contract
which it was argued, was lost and couldn’t be
found. - Legal Test
Must prove that a proper search was made for the original.
Despite that search it could not be found.
A document will be lost where although its
existence is presumed, the precise place of its
existence cannot be remembered by anyone
who can reasonably be expected to have known
it, and it cannot be found despite adequate
search. - Ruling
Court held that there was insufficient evidence
to establish that the original contract was lost or that there had been a proper search.
Singh v Govender Brothers Construction (Possession by Opponent)
- Facts
Court further considered whether secondary
evidence could be tendered on the basis of it
being in the possession of the other party . - Legal Test
Notice must be given to the opponent to produce.
Opponent must fail to produce.
Opponent must be suspected of actually being in possession of the original. - Ruling
The court held that it was clear that the plaintiff
had accepted that the defendant (non-producing
opponent) did not have possession of the original document.
Thus, this exception could not be invoked.
Singh v Govender Brothers Construction (Possession 3rd Party)
- Facts
The Court further considered whether secondary evidence could be produced on the ground of the original being in the possession of a 3rd party. - Legal Test
It must be established that a subpoena duces
tecum was served on the 3rd party to produce the document; and
That the 3rd party refused to do so on the basis of a recognized privilege. - Ruling
The test was not complied with.
The Court also held that secondary evidence will
also be allowed where the third party resides
outside the jurisdiction of the court and is
uncooperative.
Owner v Bee Hive Spinning Co Ltd (Impossibility or Inconvenience)
- Facts
In a prosecution under a statute relating to
factories, it became necessary to prove the
contents of a notice specifying the times allowed
in the factory for meals.
The relevant statute required the notice to be
affixed in the factory or workshop. - Legal Test
Determined on an ad hoc basis with regard for the facts of the case specifically. - Ruling
The court allowed oral evidence of the contents
of the notice to be admitted.
Section 18(1) of the CPEA (Permitted by Statute)
If a document is considered public and can be used as evidence in court just by showing it, then any copy or extract of that document—especially if it’s verified by an officer who has the original—can also be used as evidence
Common Law Requirements for “Public” nature [According to s18(1) of CPEA]:
(1) Be made by a public official
(2) In pursuance of a public duty
(3) The document must constitute a permanent
record and be open to public inspection.
Section 221 and 222 of the CPA (Business Records)
- Question is whether these records are to be regarded as originals or copies.
Case law on s221 and 222 of CPA
- S v Porritt and Another
The short answer is that they are the business and trade records of the entities in question.
It does not matter if the entity received or retained an original or a copy, they nonetheless constitute its trade and business records.
Alternative use of secondary documents
Secondary evidence may be used
to prove things other than the contents of the
document.
